I am writing about liberty, freedom, and rights because I think that we have become confused about their meaning. This attempt was brought on because of many people saying that being told to wear a mask as a part of a protocol to control the Covid 19-pandemic is a violation of their rights as a citizen of the United States.
These words – liberty, freedom, and rights - are fraught
with emotion. I do not expect that this short essay will resolve any issues. It
may however get some of us to think about these words as they get thrown around
in casual use.
I will start with two of our founding documents – The Declaration
of Independence and the Constitution.
Early in both
documents the word liberty is used:
“We hold these truths to be self-evident, that all men are
created equal, that they are endowed by their Creator with certain unalienable
Rights, that among these are Life, Liberty and the pursuit of Happiness.--That
to secure these rights, Governments are instituted among Men, deriving their
just powers from the consent of the governed.” Declaration[1]
“We the People of the United States, in Order to form a more
perfect Union, establish Justice, insure domestic Tranquility, provide for the
common defense, promote the general Welfare, and secure the Blessings of
Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America.” Constitution[2]
"I pledge allegiance to the Flag of the United States
of America, and to the
Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all."
Pledge of Allegiance[3]
And, we have
the statue of liberty. “The Statue of Liberty (Liberty
Enlightening the World; French: La Liberté éclairant le monde) is a colossal neoclassical sculpture on Liberty Island in New York Harbor within New York City, in the United States. The copper statue, a gift from the people
of France to the people of the United States, was designed
by French sculptor Frédéric Auguste Bartholdi and
its metal framework was built by Gustave Eiffel. The statue was dedicated on October 28, 1886.
The statue is a figure of Libertas, a robed Roman liberty goddess. She holds a torch above her head with her
right hand, and in her left hand carries a tabula ansata inscribed JULY IV MDCCLXXVI (July
4, 1776 in Roman numerals), the date
of the U.S.
Declaration of Independence. A broken shackle and chain lie at her
feet as she walks forward, commemorating the recent national abolition of
slavery.”[4]
The declaration states that freedom is one of our
unalienable rights. The dictionary states that unalienable is the archaic form
of inalienable. Obviously, this is a compound word. As a result, its difficult
to understand. And there are two ways to break it apart: in-a-lien-able and
in-alien-able. The second one does not
seem to fit. The first one does. According to the Business Dictionary[5],
alienable rights are “capable of being taken away or transferable. Right of
ownership of a property is alienable but the fundamental
civil, human, and natural rights are inalienable.
... The alienable rights transferred directly with the
transfer of ownership of the property as the responsible party can only
reasonably be one entity.”
This brings us to the concept of “rights”. Wikipedia[6]
states. “There is considerable disagreement about what is meant precisely by
the term rights. It has been used by different groups and thinkers
for different purposes, with different and sometimes opposing definitions, and
the precise definition of this principle, beyond having something to do with
normative rules of some sort or another, is controversial.”
Broadly speaking, liberty is the ability to do as
one pleases. It is a synonym for the word freedom.
And this is unfortunate because liberty as used in the declaration of independence,
the constitution and the pledge of allegiance meant something different than
freedom. Moreover, the choice of the liberty rather than freedom is important.
·
In modern politics, liberty is the state of
being free within society from control or oppressive restrictions imposed by
authority on one's way of life, behavior, or political views.
·
In philosophy, liberty involves free will as
contrasted with determinism.
·
In theology,
liberty is freedom from the effects of "sin, spiritual servitude, [or]
worldly ties".
·
Sometimes liberty is differentiated from freedom
by using the word "freedom" primarily, if not exclusively, to mean
the ability to do as one wills and what one has the power to do; and using the
word "liberty" to mean the absence of arbitrary restraints, taking
into account the rights of all involved.
In this later sense, the exercise of liberty is subject to
capability and limited by the rights of others. Thus liberty entails
the responsible use
of freedom under the rule of law without depriving anyone else
of their freedom. Freedom is broader in that it represents a total lack of
restraint or the unrestrained ability to fulfill one's desires. For example, a
person can have the freedom to murder, but not have the liberty to murder, as
the latter example deprives others of their right not to be harmed. Liberty can
be taken away as a form of punishment. In many countries, people can be deprived
of their liberty if they are convicted of criminal acts.
In other words, your liberty, and other rights, stop in our
society when they interfere with the liberty of others in the society. I am not
a lawyer, but I would presume that almost if not all law deals with this type
of conflict.
The constitution adds the word blessing – the blessings of
freedom. Blessing originated as a religious term. But in this case, I think it means
gifts.
The first ten amendments of the constitution are called the
Bill Rights. They were intended to specify some of the rights held by the
people. Amendments 1 through 8 define specific
rights: Freedom of Speech and of the Press, Right to Bear Arms, Protection of
Citizens’ Rights To The Ownership And Use Of Their Property, Protection against
Unreasonable Search and Seizure, Grand Jury Protection, Right to a Jury Trial, Extension
of The Right To A Jury Trial To Federal Civil Cases, and No Excessive Bail.
The framers of the constitution were sensitive to the fact
that the rights refined in the first eight amendments were not the only rights
that the people had. The ninth amendment states, “The enumeration in the
Constitution, of certain rights, shall not be construed to deny or disparage
others retained by the people.” And the tenth amendment states, “The powers not
delegated to the United States by the Constitution, nor prohibited by it to the
States, are reserved to the States respectively, or to the people.” This and
the Declaration of Independence leaves the issue of rights open indefinitely.
It is interesting to note that the word freedom appears only
in the first amendment[7].
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and
to petition the Government for a redress of grievances.”
Freedom differs from liberty in that freedom has no limits.
No one in our society or system of governess to act in any way they desire except
for those rights protected in the first amendment (even those are limited if
intended to harm)[8].
You do have the liberty to act in any way you want except when your action
violates the rights of others. For example, you have the right to buy a car.
And, you have the liberty to drive the car on public roads after obtaining a
license and purchasing insurance (to protect others). However, you are not at
liberty to drive at any speed above the limits set by law. Or, to purposefully
use the car to affect bodily harm on someone.
You have the liberty of not wearing a mask during the
pandemic as long as you do not risk infecting anyone else.
As an example, reckless driving is a crime because not
driving recklessly is a duty. “In Texas, reckless driving is a crime. More
specifically, reckless driving is a misdemeanor punishable by:
- A fine
not to exceed $200,
- Confinement
in a county jail for not more than 30 days, or
- Both a
fine and confinement in jail.”[9]
If you are aware that you have Covid-19 and do not wear a
mask in the presence of others, you may have committed a crime. For example, “Criminal
transmission of HIV is now better known as HIV non-disclosure,
which is the criminal punishment for not disclosing an HIV positive
status. This can be intentionally or unknowingly not disclosing HIV status
and then exposing or transmitting HIV to a person.”[10]
I believe that it is our duty to wear a mask during the
pandemic and not recklessly expose others in our sphere of influence to Covid-19.
[1] https://www.archives.gov/founding-docs/declaration-transcript
[2] https://www.annenbergclassroom.org/constitution/
[3] https://en.wikipedia.org/wiki/Pledge_of_Allegiance
[4] https://en.wikipedia.org/wiki/Statue_of_Liberty
[5] http://www.businessdictionary.com/definition/alienable.html
[6] https://en.wikipedia.org/wiki/Rights
[7]
According to a search of the Constitution in Annenberg’s “Constitution Guide”, https://www.annenbergclassroom.org/constitution/
[8] The
U.S. Supreme Court has ruled that the government sometimes may be allowed to
limit speech. For example, the government may limit or ban libel (the
communication of false statements about a person that may injure his or her
reputation), obscenity, fighting words, and words that present a clear and
present danger of inciting violence. The government also may regulate speech by
limiting the time, place or manner in which it is made. For example, the government
may require activists to obtain a permit before holding a large protest rally
on a public street.
[9] https://www.enjuris.com/texas/car-accident/reckless-driving.htm
[10] https://en.wikipedia.org/wiki/Criminal_transmission_of_HIV
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